Cite as U.S. v. Twelve Misc. Firearms, 816 F.Supp. 1316 (C.D.Ill.
1993)
UNITED STATES of America, Plaintiff,
v.
TWELVE MISCELLANEOUS FIREARMS and Three Firearm Receivers,
Defendants,
and
UNITED STATES of America, Plaintiff,
v.
FOURTEEN MISCELLANEOUS FIREARMS and Seven Firearm Receivers,
Defendants.
Nos. 92-1475, 92-1476.
United States District Court, C.D. Illinois.
Jan. 27, 1993.
Esteban F. Sanchez, U.S. Attorney's Office, Springfield, IL,
for plaintiff.
Rex L. Reu, Bloomington, IL, Thomas Sebanzle-Haskins, Giffin
Winning Cohen & Bodewes, Springfield, IL, for defendants.
ORDER
McDADE, District Judge.
Before the Court is Claimant F.J. Vollmer & Company, Inc. and
Claimant Kenneth L. Nevius' Motion to Dismiss Plaintiffs First
Amended Complaints filed in the above captioned cases.
To sustain a dismissal of a complaint under Fed.R.Civ.P.
12(b)(6), the Court must take all well-pleaded complaints as true
and construe the complaint in the light most favorable to the
Plaintiff to determine whether Plaintiff is entitled to relief.
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct 99, 101-102, 2
L.Ed.2d 80 (1957). "The issue is not whether Plaintiff will
prevail but whether the [Plaintiff] is entitled to offer evidence
to support the claim." Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
In this action, Plaintiff seeks to forfeit to the United
States certain weapons which were in Claimants' possession.
Claimants possessed the weapons in violation of federal law, and
the weapons were seized pursuant to 18 U.S.C. section 924(d)(1).
Claimants argue that the seizure took place in September Of 1991
but that the Complaint was not filed until October of 1992, over
one year later. The time limit for the commencement of "[a]ny
action or proceeding for the forfeiture of firearms ... shall be
within one hundred and twenty days of seizure." Id. Because the
Complaint was filed more than 120 days after seizure, Claimants
argue that the action must be dismissed pursuant to 18 U.S.C.
section 924(d)(1).
The Court finds, however, that the phrase "any action or
proceeding," as stated in section 924(d)(1), does not refer simply
to court actions, as Claimants argue. Rather, the phrase also
contemplates administrative actions. Clearly the phrase "any
action or proceeding" could not be read so narrowly as to preclude
administrative proceedings. More importantly, however, section
924(d)(1) is governed by "all provisions of the Internal Revenue
Code . . . relating to seizure, forfeiture, and disposition of
firearms. . . . " Id. The Internal Revenue Code mandates admin-
istrative proceedings "in all cases of seizures of any goods . . .
subject to forfeiture ... which ... are of the appraised value of
$100,000.00 or less..." 26 U.S.C. section 7325. See also Cooper
v. City of Greenwood, Mississippi, 904 F.2d 302, 305-306 (5th
Cir.1990), ("Under 18 U.S.C. section 924(d)(1), firearms involved
in a violation of section 922(g) . . . 'shall be subject to . . .
forfeiture' if the federal government commences forfeiture
proceedings within 120 days of seizure." Citing 26 U.S.C. sections
7321-7328.)
Based on the above, the Court finds that a forfeiture action
is timely so long as the Plaintiff commences at least an
administrative action within 120 days of the seizure of the
property in question. In the case at bar, Plaintiff, through its
argument, has intimated that such an action was timely commenced,
and Claimants have not alleged that the administrative action was
untimely commenced. Accordingly, the Court DENIES the Claimants'
Motions to Dismiss Plaintiffs First Amended Complaints.